Untitled Texas Attorney General Opinion ( 1947 )

THEATTORNEYGENERAI.
OF TEXAS
AUSTXN aa. TEXAS
PRICE DANIEL
ATTORNEYGENERAL
Feb. 25, 1947
Hon. Paul H. Brown Opinion No. V-47
Secretaxy of State
Austin,~ Texas Ret Proper time for filing and
recording in office of the
Secrcsasy of State a feso-
lution Y~a4Wia8 t.he cerpo-
rat* term of a railroad
corporatie* pur#uant to the
provisions of Article 6268,
and prepes ferm for said
reaolutiea and itr accem-
panyiag c4rtificatf7,
Dear Sir?
You hrvs raguested an opiaien frem this department as
to whe,ther or not it would be pcrmiraibla fer a railread %srpora-
tion to file the resolution r.4nsffvino its :amrperate term with the of-
fice of the Secretary (DEState before the expiration of the current
cosporrte period, The, problem of when saGb resolution should be
filed turns on the construction, ef Article 6268 which raadu as fel-
lows;
“The marmot 4 srnwia~ a raillead carporation
which has expired by iapm af rims shall be a8 Sol-
lQW%
“1, By a rer&utioa 19 w&Ming adopted by a ma-
jority of threa-fe$aWtha of WI storkho``eps of the
company rt a reg,ula* meeting of the stockholders,
specifying then period of time for which the corpora-
tion is renewed.
“2. Those desiring a renewal of the corporation
shall purchase the stock of those opposed thereto at
its current value.
“3. The reaolution, when adopted, shall be cer-
tified to by the president of the company: and he shall
state in his certificate thereto that it was adopted by
a majority vote of three*fourths of all the stockhold-
ers of said cempany at a regular meeting of such
steckhclders, and that the stockholders desiring such
Hon. Paul H. ,Bpown - Page 2 Opinion No. V-47
renewal have purchased the stock of those who
oppose such renewal, and such certificate shall be
attested by the secretary of the company under
the seal of the company.
““4. Said resolution and certificate shall be
filed and recorded in the office of the Secretary
of State, and the renewal of said corporation shall
date from said filing.”
This article is to be found in Title 112, R,C,S., 1925, entic
tled “Railroads’” and as specific legislation applicable to raflread
corporations provides the exclusive method of renewal or exten-
sion of railroad charters, the statutes relating to renewal of cor-
porate charters generally being inapplicable. 13 Amer. Juris. p.
228, 5 85.
The phrase in Article 6268 which causes doubt as to the
proper time for filing such resolution is as follows: * The maaae r
of renewing a railroad s-erposation which has e ired by la se of
time shall be as follows: j ~ /’ (Em~s~d--fE--TmFui-
scored language is viewed alone and given its literal meaning, the
steps of renewal which are then enumerated would seem to be a
sequence to the expiration of the railroad corporation with the re-
sult that steps accomplishing a renewal could not be takea until
the full period of cerporate existence was at an end; however, this
article mu&t be wad in connection with the other articles which
provide for the creation and existence of railroad corporations,
most of which were originally enacted in 1876 and all oft which
comprise Chapter One entitled “‘Charters and Amendments* of
Title 112. These articles are not numerous and may be briefly
summarized. Article 6259 gives the minimum number .of incor-
porators; Article 6260 requires a railroad corporation building or
operating, etc., a railway in the state to be chartered under the
laws of Texas; Article 6261 regulates the amount of stock sub-
scription and the amount to be paid iw Article 6262 gives the req-
uisites for the articles of incorporation and reads as follows:
“The persons propesing to form a railroad
corporation shall adept, and sign articles of in-
zorporati*n, whieh shall nnta5th:
“‘1, The name of ,the propmued corporation.
*2, The places from and to which it is in-
tended to censtruct the proposed railroad, and
the intermediate counties through which it is
proposed to construct the same. Local suburban
.railways may be constructed for any distance
less than ten miles from the corporate limits
of any city or town, in addition to such mileage
as they may ‘have within the same; and in such
case the general direction shall be given from
the beginning point.
‘“3. The place at which shall be established
and maintained the principal business office of
the proposed corporation.
“4. The time of the commencement and the
period of the continuation of the proposed eor-
goration.
‘“5. The amount of the capital stock of the
CorpoPrtion.
“6. The names and places of residence of
the several persons forming the association fox
incorporation.
‘“7. The names of the members of the first
board of directors, and in what officers or per-
sons the government of the proposed corporation
and the management of its affairs shall be vested.
“8. The number and amount of shares in the
capital stock of the proposed c,ospo+ation.w
Article 6263 provides that the Asto~rney General approve the ar-
titles of incorporation an,d attach thereto a certificate to that
effect. Article 6264 provides for an afiidavit to the amount of
subscriptions, etc., sworn to by at least three of the directors,
and to be recorded with the articles oi iccorporation in the of-
fice of the Secretary of State. Once these steps are taken “‘The
existence of such corporation shall date from the filing of the
articles of incorporation in the oddice of the Secretary of State,
and the certificate of the Secretary of State ‘under the seal of the
State, shall be evidence of suc’h filingO” Artic.le 6265; but ““No
railroad corporation shall be formed to continue more than fifty
years, but such corporation may b,e renewed from time to time
for periods not longer than fifty years.” Article 6267. Article
6268 has previously been set out in Ml, On!y six articles re-
main in Chapter One e,nd these reP,ate respectively to sale or con-
veyance under special law, the lien in such instances, amend-
ments to articles of incorporation, and amendments limited in
applxation to branch lines.
Hon. Pa,u1 H. Brown - Page 4 Opinion No. V-47
existence: azeat9ean Arbiel~s 6259-6266; ~Poathr Articles 6.271-
6274; and extiam Article 6267, or, ia tLw altinutivo, z``wrl,
Artieloe 6267, 6268, A aornpar~ison of Article LEU, pmvtily
quded and baa to de with &a filiag of 8Ptkbs Ot Mrpertiion,
i,e, crsdion. uo3 A~tiole 6269, p~8vfo#ly qaoQJ and hatig to do
with r~.abewaI, ~evealr two entirely difbcmt prumdawe6, Now if
A~tic~rmu~t that xonewal coukl LB had aXy if the corpo-
rate emtibrpOX brirg had &s&red to exlnt or, Ir 48~ words of the
shalt4 B ‘had eqigcd,’ it w&l ba aeaoaury b Pea&eats that be-
p2f9y26y !+itzJr``20f
Article 62b Urrly coariampla* that +&a a*Selnbnu l &otiaiag
renewal be tikon while the ao~p.avsa09oa 18 h kiag. Seatim I
speaks of *sto&holders,W ‘regulu m@etf&glp” P)~d4ent of the
company, &a Let UB w&de2 the 18isUaMo8 ahi& would arise
if the reaolut&m Oakan dur&c corporate ex(rt*luEo &fislJ set be
filed until #&t existeaacl h&d Wtmbrtad. ~xbh`` th4~3l¶OSn4At of
termirutian and tie mcuneat of eoaxHmm$ba bllo#tMl co84stutivsly,
the eorpo~ratkm would h&Q4 ceased t4 41&& fi*r tin #w+I~ it by
any method save mbi~th mad +&mptwcedn8b of ~Aslttck$ 625$-6266?
In the meantime in what Iimb0 would i&S dti Qo?pelWian find
itself? It oan hardly be supposed that the Legf8Wun l&Mded
renewal t0 be fraught with W&A teebni~s or *at *aI coin-
cider&e of expiration and reaewal fr pagprtred.
It is true that See, 4 sf Astide 4268 pnem’tkr thatthe
renewal of the ``orporatPon shall drti from tba iiliq ti recording
of the certificate ad Paclduti0n in the &fiCS od SsCaStapY of Wte.
IA one mnse under this seMion the laagirr e in qua&Aea hem may
be exDlained, fez by so dflit~r *a COS9OX~d Wd k&m ,*l4&4d to 8bort-
4x1 it; allot&f time: tbascbo~t, by a& act ef filing it ‘hea rxpirad”
m.d 1s renewed.
Hon. Paul H. Brown - Page 5
ix&have expired at the time the renewal was filed Tr,we the
court does net rule on the propriety of the date of fih,iag: dppsar-
ently it was not questioned; but in view of the court’s language,
previously quoted, to the effect that such renewal amounted to a
continuati4n of the old corporation and in view of the foregoing
analysts of the provieions of Chapter I cn Charters and Amend-
ments, it is the opinion of this department that the resolution ex-
tending the aorporate term of a railroad corporation could be
filed and recorded in the offica of the Secretary of State before
the expiration of the then current period of existenoe of said
corporation.
The form of the resolution and the accompanying cer-
tificate whioh you have submitted to us comply with all the re-
quirements of Artiole 6269, are not in conflict witi the provisions
of Chapter I of Title 112, R.C.S, of 1925, nor wi’th the lows of ohe
United States, nor ef this S&w, and if SO prepared, adopted,
signed, and submitted b the Attexnay General, he will attach
therat a mrtificate t4 that atiect.
SUMMARY
In view of the provisions cf Chapter I, Title 112,
R. C. S,, 1925, md in view of Flowers
er R, Co., 156 S, W. (Zd) 260, a
-I eo~e%ation, eeuld be filed and reco&ked in
the office of ?&e SeaWary of State before the mqdro-
ties, 4f Ehe t&en c*lrg*nt corporate period of existence.
The reselutisn and ac!cempanying certificate must
comply with the requirements of Article 626#, R.C.S.,
1925.
Yours vel”y truly,
ATTORNEYGENERALaFTEXAS
MP:jt: sl
APPROVED FEB 25 1947
APPROVED
OPINION COMMITTEE
BY BWB
CHAIRMAN